The right to choose…


amerisleep-choose-right-memory-foam-mattress-firmnessThe Ministry of Justice have issued a proposal document that seeks to reform the way criminal legal aid is effectively bought by the Government. I blogged on the issue a couple of days ago and you can read it here…

https://crimsolicitor.wordpress.com/2013/04/23/the-price-of-everything-the-value-of-nothing/

Amongst the removal of legal aid for Judicial Review, the restrictions on Crown Court legal aid if you earn a certain amount of money, the removal of civil legal aid to those with less than a year in the UK and the shameful cutting of fees for the Bar, by far the most damaging is the concept of price competitive tendering.

At present legal aid is provided by those who can satisfy certain quality criteria, about 1600 providers. The proposal is to only allow the cheapest and limit the number to 400 contracts, and in all likelihood less than that number of providers. In order to make sure an “attractive” amount of work for each of these providers a client will no longer be able to choose which solicitor he has acting for him. Familiar names and firms will go, relationships of trust will be broken and you will be given one of the providers in the area that was chosen simply because they were cheaper than the others.

I don’t doubt there will remain a core of good solicitors, of solicitors who will do the job because they want to and believe in the idea of justice and fighting for your rights, but many, many of us will go. I already know of three solicitors planning to call it a day if the proposals are implemented. These are good solicitors, solicitors that I would use if I needed help.

It is the lack of client choice that appals me the most but without it the proposal cannot work, and the idea is just so misguided if, as we are told, the proposals are there to improve efficiency and save money.

Whether we like to accept it or not, the bulk of instructions we receive are from repeat offenders, people who have already been in the system. People who know us, trust us and in some cases even respect us. They are the people who rely on us to give good advice, who will trust us to do what is right for them, people who are more likely to accept the advice we give even if that is unpalatable to them. This trust means they will take the advice to plead guilty when they should and not drag it out to a trial. This is a cost saving to the fund and importantly means their victims are not forced to endure a wait for justice and the ordeal of a trial. We know these people, we know their families, we know their problems and how it affects them. This means we can direct them to the advice and help we need.

The lawyer/client relationship is one built on trust, it is vital that is not thrown away in the name of expediency and cost. With it we can help give justice not just to the client, but to the victim and in the words of Chris Grayling spend the taxpayers hard earned money effectively and responsibly.

Let me give you an illustration of how important the client relationship is. I posted the following in a slightly different format a while ago when arguing for face to face advice in the police station, something that was at risk when the Government where considering the last major reduction to legal aid and reducing access to justice. The principles remain the same, perhaps more so.

Let me introduce you to Brian…

Brian is 6’4″ tall, weighs 22 stone, shaves his head and has tattoos covering about two-thirds of his body. Brian suffers from a number of physical difficulties including epilepsy and has been categorised as having a borderline personality disorder and takes a cocktail of medication each day.

He speaks slowly and has a broad West Country accent. First impressions on meeting Brian are rarely positive. Physically he is intimidating and his speech and mannerisms often give the impression that he is slow to comprehend things.

As a result the contact he has had with authority figures whether that be police, doctors, social services or courts rarely go smoothly. People treat him as being stupid, and he becomes frustrated, voices are raised and one thing leads to another, usually badly for Brian. Brian is certainly not stupid, just unable to communicate very well.

Three years ago Brian met Sheila. Sheila was the love of his life, his first girlfriend. For ten months Brian spent all his time with and all his money on Sheila; flowers, chocolates, fancy meals, clothes, jewellery and a myriad of other gifts. All was well with his life.

At the end of ten months Sheila left Brian and there was no reason given, no real explanation, she just stopped answering his calls, texts were not responded to and her Mum told him she was never in. Brian became depressed, his medication was upped and over time he found a level to build from.

Then two months later Sheila contacted him again.

A text, would he meet her, she wanted to talk.

Delighted, he met her in their café and she told him she was pregnant. Not for a minute did he question whether he was the father. In his head he straight away made plans about what the baby would need, where they could go and what he would do with her. Sheila made it clear that she didn’t want him to have any involvement at all, he could provide for the baby and that was that. Nothing Brian could say would change her mind.

Resigned to the fact he may never see his child he nevertheless started buying clothes, toys and other essentials from his Disability Living Allowance. He opened an account and put £10 a week into it, “For when she was 18 and needed a car”.

Six months later, Hazel was born.

Brian was not present at the birth and was only told he had a daughter two weeks after the actual birth by way of a text message. Brian immediately went to see Sheila but she wouldn’t see him. He didn’t see Hazel but was sent a blurry picture to his mobile phone.

At that point someone told Brian that he was entitled to see his daughter, he had rights. He contacted the firm I worked for and the process of him seeking contact was started. Time was spent with him, and a relationship was built with him. At first things were not easy, he distrusted authority figures, he did not want to communicate with us, and wasn’t happy to speak about himself and his life. But, things got better and as he began to trust us he provided information that we needed to help him and to built a case. There then started eight months of assessments; court, doctors and social workers and various distressing court hearings where Brian’s life was dissected.

You see, not only did Brian have various medical issues he had a caution when he was 17, for sexual assault. He had kissed a girl, a fifteen year old, who he thought was his best friend. She told her Mum, she told the police and he was arrested. The circumstances were not in dispute but it meant Brian was a potential risk to a child, even his own. Finally the court ordered that Brian be allowed three two hour contact sessions a week, supervised and in a child friendly environment.

For three months all went well. Brian had his contact and he thrived from it. He had a new tattoo on his arm proudly proclaiming his daughters name and date of birth. He was in his own words, “as happy as I had ever been”.

Then, through no fault of his own his benefits money changed and he had less to live on. Some weeks he could not afford to pay the maintenance he had been paying to Sheila. Suddenly Hazel was ill, she was away, she was asleep and so he was no longer having his contact. She wasn’t, they were all just excuses made up by Sheila. For a while Brian accepted these reasons and did not make a fuss. As the days went by his frustration increased, calls were made to Sheila, texts sent and visits made. Still no contact.

Battling with his emotions; the frequency of the calls increased, texts filled Sheila’s inbox, he knocked on her door more and more often. Frustration moved to annoyance and then anger. Words were said in desperation and sent in texts for all to see. Brian was arrested for harassment and I turned out at 11pm to represent him. He had said he didn’t want a solicitor at first but a sensible custody sergeant had persuaded him. He asked for my firm as he knew us and trusted us. I spent forty minutes with him, I already knew who Brian was and I understood where the root cause of the problem came from.

After advice and an interview, representations were made to the Sgt and a caution given. Brian was also told how he could enforce his court order for contact, and an appointment made for the following day.

I went on to the next client and forgot about Brian. I saw him a few weeks later pushing a pram, fussing about a blanket over his baby daughter. We stopped and chatted for a few minutes, made the obligatory comments about a beautiful baby, wished him well and went on with my day.

A few days ago I was called to the police station for a “lump of a man” who had been difficult from the moment he came in and was still being difficult in his cell. He had been arrested for common assault.

I went straight up to the station. I was told that the client was Brian and was told that four weeks ago he had punched his ex partner over a contact visit, they were both in the middle of a busy shop, people and children had been scared. He was asked to leave and he had walked off.

I was told that he had admitted it when he was arrested and that the interview was a formality. There was no injury but having in mind his previous caution on the same victim, his background and the fact he had been difficult all the way through his detention he was going to be charged.

I was able to find out by speaking to the officer, although he was reluctant to tell me, that the statement had only been made three days ago. I asked to speak to Brian, and got a drink for him, hot chocolate with five sugars because I knew that’s what he liked.

I went into the room to speak to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room. As soon as I walked into the room he became calmer, he started to listen to what was being said to him. He knew me and he trusted me.

It seemed that, on the day, he and Sheila had made the usual arrangements for a contact visit, but one of them had made a mistake and having waited twenty minutes Sheila had gone off shopping. Brian had called her and when she said she was in the supermarket shopping, he had gone down to speak to her and hopefully persuade Sheila to allow the contact visit.

He had gone to the shop where he had found Sheila with her head in a freezer choosing a pizza. When he called her name he said she didn’t answer him but thought she may not have heard him, it was after all a busy shop and her head was in the freezer.

“So what did you do?”

“I tapped her hard on the shoulder to get her attention so i could speak to her. She shouted at me and the Manager asked me to leave”

He denied that he had on he had punched her, and maintained that he was not angry with her.

He went on to say that he hadn’t seen Hazel since, and he had not paid Sheila maintenance for three weeks because he had not had contact. Three days ago she said she was going to report the assault.

He was scared that he would lose all his contact with Hazel because of more lies. He said that Sheila did not need him now as she had a new boyfriend. He said he didn’t want to talk to the police officers as they wouldn’t let him speak and thought he was stupid.

I explained that in law he had committed an assault by touching her without her permission, even if he had not punched her. I told him he needed to explain his history with Sheila to the officers and that the officers had not let him speak before because they wanted to protect him and themselves as the comments needed to be on tape.

Brian wasn’t certain whether he could say all he wanted to say properly, he didn’t think he could talk to the officers and let them know all they needed to know. He was scared that he would make his situation worse and by admitting an assault Sheila would go back to the court and he would lose his contact.

I drafted a prepared statement, Brian signed it and I read it out for him at the start of the interview. I made it clear that Brian was happy to answer any clarification questions. With patience and cajoling from me and the AA Brian got through the interview.

The officer told the Sgt that he had made a full admission to the offence, that he had been frustrated by the contact being messed up and he had hit Sheila on the shoulder. She was factually correct, that’s what he had said in his statement, and in the questions he had then answered. The meaning of what he had said was different, a fact I explained to the Sgt and the officer. After much discussion and thought, it was agreed that on the balance of the evidence, the lack of corroborative witnesses and taking Brian himself into account that there should be no further action and Brian was released.

He still has to resolve the issue of contact, without the help of a legal aid lawyer now but at least he does not have the additional burden of a charge to deal with.

This is just one example of why the right to choose the solicitor of your choice is so very important and one that we should all fight to preserve. It is not unique and I and my colleagues could give you so very, very many stories of a similar type. My knowledge of “my clients”, the relationship we build with them and the trust that we develop helps ensure justice for them and often their victims. This is something that is hugely important to me. It really isn’t about the money.

I’m not saying that the same results would not have happened if Brian had been allocated different unknown solicitors each time he had beeb arrested and thatBrian would have been facing a charge in court. I am saying that in his case there would be a very real risk that he would have simply not co-operated due to his difficulties, and an injustice may have happened and what price do we put on ensuring an injustice does not happen. In this case I was able to use my knowledge of my client, his circumstances and my working relationship with the police to prevent a possible injustice and more importantly save money for the public purse.

He will be able to continue to see Hazel and that means he remains stable and happy and does not push him off the rails where who knows what it might cost to put right. The cost of a court case has been avoided.

Your right to choose a solicitor and a barrister of your choice of legal advice is important. Make sure that you can exercise it in the future and let your MP know how you feel. This is a really important issue, nobody wants to think they will be arrested or face a charge, but sometimes the unthinkable happens. When it does then make sure you can choose who you or your loved ones are helped by.

Please sign the petition www.epetitions.direct.gov.uk/petitions/48628

Contact your MP http://www.parliament.uk/about/contacting/mp/

Respond to the Consultation (you don’t have to be a lawyer)

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Author: crimsolicitor

I am a Criminal Defence Lawyer, committed to providing the best defence I can for those who need it, regardless of their ability to pay...

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